Chris Fialko's Blog

Let me tell you a story about Tom Petty, the case that should have put me in front of the Supreme Court, and redemption at the Jail North.

I’ll start with my trip last month to Boston, where we took our son on a college tour. (Beware I will be digressing some.) I ended up one evening at a bar called Great Scott where the internet said a few local bands were playing. (Live music replenishes my soul.) Ever since Petty died earlier this year, bands are playing covers of his songs at shows. (I first noticed this a few months ago back at the Neighborhood Theater in Charlotte, when Conor Oberst played a rollicking version of the Petty song Walls/Circus.)

Sure enough, Matt Charette and the Truer Sound played not one but two Petty songs in their set, including Learning to Fly. And 30 seconds into that tune, I had a flashback to a crack cocaine bust at Charlotte-Douglas Airport circa 1999.

In the 1990s I was learning how to be a criminal defense lawyer. I represented many young black men who were arrested and accused of selling crack cocaine. (This was the most intense era of America’s Mass Incarceration Project, although that descriptive term was not yet coined.)

The federal court appointed me to represent a fellow I will call David from New York. When he got off a plane from La Guardia, three DEA agents were waiting for him at the gate. David had no luggage -- just a stuffed backpack.

The lead case agent pulled David aside and told him authorities in New York sent a tip he might be carrying drugs. David said, Okay. The agent asked if David would mind stepping into a nearby bathroom to get out of the crowd, and the three agents ushered him into the bathroom.

They quizzed him:

Why are you in Charlotte?

Where are you going here?

Why don’t you have luggage?

Why did you buy your ticket with cash just an hour before the flight?

David answered each question briefly, but the agents were not satisfied.

Can we search your backpack? We would like your consent to search your backpack.

David answered, Do I have to stay here? Do I have to consent?

The lead agent answered, It won’t take but a minute.

David was standing against the bathroom counter with a DEA agent on each side of him. He was cornered.

In silence, David looked around, took his backpack off, and handed it to the lead agent.

The search found two saucer-shaped blocks of crack cocaine. (Back then cocaine was often cooked into crack using a standard coffee pot, hence the shape.)

Enough crack to give David from New York a mandatory 10-year federal prison sentence, even though he had no prior record.

I challenged the search in a motion to suppress, arguing the agents detained David by walking him into the bathroom, surrounding him. I argued that they did not have probable cause to search his backpack. I argued that his silent submission to their authority was not really consent to search.

But my favorite argument was that when David asked, Do I have to stay here, Do I have to Consent, then the Fourth Amendment required the police tell him what his rights were.

At that time, the Supreme Court had never decided this question: if police detain a person, and he asks what his rights are, must they tell him he has the right to refuse consent to a search of his person or belongings?

This is the case that should have taken me to the Supreme Court.

We had a long suppression hearing, where the case agents described the above events. Not much dispute about the facts, just what the law required.

The judge held it under advisement for a good long while.

While we waited, David from New York took the 28-day treatment program at Jail North. He told me that he was a paycheck crack addict. He had a good city union job in New York, but each week when his pay arrived he bought crack and smoked it all weekend. He was determined to get sober.

David asked me to come to his graduation ceremony, to hear a song he had just learned to play. To my surprise, the jail let me attend. It was me, the counselors, and about a dozen inmates. At the end, a counselor handed David a guitar.

He strummed the first chords of Learning to Fly. Inside the windowless jail room, he sang like he had learned how to be free.

Fialko Law

Our Attorneys:

Defending the Constitution One Client at a Time.

A couple of years ago I walked into a Superior Courtroom I had not been to for a long while, and up on the bench was a judge that I had not seen in an even longer while. The judge and I had fought cases against each other in the 1990s when he was a prosecutor.

Upon spying me, the judge bellowed, “Well, how the hell are you Counselor Fialko?” Caught off guard in the full courtroom, and without thinking, I replied, “Your honor, I’m just trying to defend the Constitution one day at a time.” The judge laughed, and said “I see how that could be a full-time job.”

Ever since that day, I’ve been using that catch-phrase often, whenever I meet someone new, or see someone I haven’t seen in a while. While I say it mostly to be funny and break the ice, it also appears to be a barometer: the people who laugh and appreciate the comment tend to understand the crucial role of a criminal defense lawyer in our society. On the other hand, if my quip is greeted by frowning silence, I become immediately wary.

So, here’s my blog, mostly about issues that arise when criminal defense lawyers go about defending their clients, and the Constitution.